The former President of Catalonia (sub-state entity) in Spain, Artur Mas, faces a criminal trial in Barcelona for organising a symbolic popular consultation on independence on 9 November 2014. The non-binding consultation was opposed by the Spanish government that challenged the Catalan Government’s decree calling for a consultation vote on independence in Spain’s Constitutional Court. The highest tribunal decided two articles of the decree were unconstitutional. The first one related to the regulation of calling the referendum and the second one, because according to the Court, the popular participatory consultation was indeed a referendum and therefore the Catalan Government could not go beyond its competencies. The decision was made unanimously by the 12 members of the Court, which is controlled by a conservative majority of members appointed by the currently-ruling People’s Party–a Court that has been particularly hostile on distinctive identity claims. (Abat Ninet – Gardner, Int J Const Law (2016) 14 (2): 378-410).

When the Constitutional Court overruled the law and the decree, the President and the Government, against the advice of both parties that supported him, decided to accept the decision and transform the query into something radically different: a participatory process left to the public with minimal support from the Government. Later, the Spanish Constitutional Court banned the popular consultation, and did not answer to a request of the Catalan Government on what the Catalan institutions were allow to do. With no answer, according to the Public Prosecutor, the Catalan government organized the symbolic voting anyway.

The defence for the Catalan president and the other members of the Parliament argued that the popular initiative was manned by thousands of volunteers in order to get around the restrictions. More than 80.8% of those who cast their vote in the 2014 vote did so in favour of independence, although the participation was approximately 37% of the people with the right to vote.

Former President Mas and former vice-president Joana Ortega and former-Minister of Education Irene Rigau stand accused of disobedience against the state and wrongdoing (breach of trust) as a public official. They could face a 10-year ban from public office if found guilty. None of them will go to prison because the felony of misappropriation of funds was excluded from the trial. This last charge was based on the presumption that public funds had been spent to organise the voting.

The criminal prosecution of the former President has had huge political and media repercussions in Catalonia and Spain. Around forty thousand people came out to protest at 8am on a Monday morning as Mr. Mas was criminally prosecuted for what they consider a political trial; a judicialisation of a political conflict and a way to weaken self-government, the right to self-determination, and democracy itself. These arguments go further comparing the political and legal responses that the United Kingdom and Canada gave to similar political claims to Scotland and Quebec respectively.

Former President Mas’ et al. defence further showed that the Spanish Government has disobeyed the Constitutional Court on more than 26 occasions and no member of the central government has faced a criminal procedure because of it. Also, the criminal procedure and penal law are always a ultima ratio (last resort) in a democratic system, no justification was given to instruct these political facts in this latest instance.

The case has had international repercussions as well. Members of all the major parties in the Parliament of the European Union have noted their regret of the judicialisation of the political situation. The Canadian Parliament has taken position on this topic by requesting that the Spanish Government respect all human rights.

The Spanish Government, the Spanish Constitutional Court and the Public Prosecutor (despite strong dissensions between the Central and the Catalan sections) argue that the criminal prosecution proves the independence of the Spanish judiciary and the equality of everyone before the law. They imply that this prosecution serves as a way to strengthen the rule of law, to reinforce the institutional role of the Constitutional Court and the constitution in the state. The Public Prosecutors have also defined the massive protest that accompanied Artur Mas as he stood trial as unacceptable harassment and a way to interfere in the needs of the judiciary.

Regardless of these arguments, the political situation in Spain shifts to a different stage with the criminal prosecution of other Catalan representatives. For example, for different reasons, timing and facts, the current speaker of the Catalan Parliament, Carme Forcadell is also facing criminal charges for letting the Parliament debate a measure having to do with independence.

The judicial action to intimidate people’s behaviour is not working in Catalonia and the escalation of tension seems to be increasing dramatically, so far between the Catalan and Spanish institutions. The Catalonia-Spain political issue highlights many legal and political dilemmas, such as the boundaries of federalism; the undesirable clash between democracy and the rule of law; the limits of the principle of non-intervention; the definition of Nation and the principle of self-determination. At this stage, it might be a good moment to prevent further difficulties through dialogue and negotiation. An international actor, such as an ad-hoc committee of the Council of Europe, the OSCE, the Group of Friends of Mediation of United Nations or the government (s) of third (s) state (s) would have a privileged situation. It is time to intervene before is too late.

Thank you for this informative piece. How was the non-compliance in prior cases generally rationalized? Thank you.

Former President Mas’ et al. defence further showed that the Spanish Government has disobeyed the Constitutional Court on more than 26 occasions and no member of the central government has faced a criminal procedure because of it.

Thank you very much for your comments and your question. The rationalization has been so far based on a general acceptance or at least consent by the Spanish institutions of this discriminatory application of the law. The vast majority of the Spanish media have not even talk about this situation. The Catalan case (challenge) seems to allow this sort of exceptional and political measures.

To have a full picture of the situation, the sentence that you quote can be completed with a very controversial Bill that passed in 2015 giving to the Court new executive powers, including the temporally suspension of a democratic authority if it does not obey a Constitutional Court’s resolution. The Bill that de-naturalises the Court, is a very concrete measure to intervene in Catalonia.

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